Mr. Pomeroy (for
himself and Mr. Moran of Kansas)
introduced the following bill; which was referred to the
Committee on Energy and
Commerce, and in addition to the Committee on
Ways and Means, for a
period to be subsequently determined by the Speaker, in each case for
consideration of such provisions as fall within the jurisdiction of the
committee concerned

A BILL

To amend title XVIII of the Social Security Act with
respect to physician supervision of therapeutic hospital outpatient
services.

Except as may be provided
under paragraph (2), insofar as the Secretary requires the supervision by a
physician or a non-physician practitioner for payment for therapeutic hospital
outpatient services (as defined in paragraph (5)(A)) furnished under this part,
such requirement shall be met if such services are furnished under the general
supervision (as defined in paragraph (5)(B)) of the physician or non-physician
practitioner, as the case may be.

Subject to the succeeding provisions of this paragraph,
the Secretary shall establish a process for the designation of therapeutic
hospital outpatient services furnished under this part that, by reason of
complexity or high risk, require direct supervision (as defined in paragraph
(5)(A)).

(B)

Consultation
with clinical experts

(i)

In
general

Under the process established under subparagraph (A),
before the designation of any therapeutic hospital outpatient service for which
direct supervision may be required under this part, the Secretary shall consult
with a panel of outside experts described in clause (ii) to advise the
Secretary with respect to each such designation.

(ii)

Advisory panel
on supervision of therapeutic hospital outpatient services comprised of
physicians and non-physician practitioners serving rural and other
areas

For purposes of clause (i), a panel of outside experts
described in this clause is a panel appointed by the Secretary, based on
nominations submitted by hospital, rural health, and medical organizations
representing physicians or non-physician practitioners, as the case may be,
that meets the following requirements:

(I)

Composition

The
panel shall be composed of at least 15 physicians and non-physician
practitioners who furnish therapeutic hospital outpatient services for which
payment is made under this part and who collectively represent the medical
specialties that furnish such services.

(II)

Practical
experience

During the 12-month period preceding appointment to
the panel by the Secretary, each physician or non-physician practitioner
described in subclause (I) shall have furnished therapeutic hospital outpatient
services for which payment was made under this part.

(III)

Minimum rural
representation requirement

Not less than 50 percent of the membership
of the panel shall be physicians or non-physician practitioners described in
subclause (I) who practice in rural areas (as defined in section 1886(d)(2)(D))
or who furnish such services in critical access hospitals.

(C)

Special rule for
outpatient critical access hospital services

Insofar as a
therapeutic outpatient hospital service that is an outpatient critical access
hospital service is designated as requiring direct supervision under the
process established under subparagraph (A), the Secretary shall deem the
critical access hospital furnishing that service as having met the requirement
for direct supervision for that service if, when furnishing such service, the
critical access hospital meets the standard for personnel required as a
condition of participation under section 485.618(d) of title 42, Code of
Federal Regulations (as in effect on January 1, 2010).

(D)

Consideration of
compliance burdens

Under the process established under
subparagraph (A), the Secretary shall take into account the impact on hospitals
and critical access hospitals in complying with requirements for direct
supervision in the furnishing of therapeutic hospital outpatient services,
including hospital resources, availability of hospital-privileged physicians,
specialty physicians, and non-physician practitioners, and administrative
burdens.

(E)

Requirement for
notice and comment rulemaking

Under the process established under
subparagraph (A), the Secretary shall only designate therapeutic hospital
outpatient services requiring direct supervision under this part through
proposed and final rulemaking that provides for public notice and opportunity
for comment.

(3)

Initial list of
designated services

The Secretary shall include in the proposed
and final regulation for payment for hospital outpatient services for 2012
under this part a list of initial therapeutic hospital outpatient services, if
any, designated under the process established under paragraph (2)(A) as
requiring direct supervision under such part.

Subject to clause (ii), with
respect to the furnishing of therapeutic hospital outpatient services for which
payment may be made under this part, the term general supervision
means such services are furnished under the overall direction and control of a
physician or non-physician practitioner, as the case may be.

(ii)

Presence not
required

For purposes of clause (i), the presence of a physician
or non-physician practitioner is not required during the performance of the
procedure involved.

(C)

Direct
supervision

(i)

Provision of
assistance and direction

Subject to clause (ii), with respect to
the furnishing of therapeutic hospital outpatient services for which payment
may be made under this part, the term direct supervision means
that a physician or non-physician practitioner, as the case may be, is able to
furnish assistance and direction throughout the furnishing of such services
and, in accordance with the policies, procedures, guidelines or bylaws of the
hospital—

(I)

with respect to
such services furnished in the hospital, or in an on-campus department of such
hospital, is present and on the same campus and immediately available
(including by telephone or other means) to furnish such assistance and
direction; or

(II)

with respect to
such services furnished in an off-campus provider-based department of such
hospital, is present in or in close proximity to such department and is
immediately available (including by telephone or other means) to furnish such
assistance and direction.

(ii)

Presence in
room not required

For purposes of clause (i), a physician or
non-physician practitioner, as the case may be, is not required to be present
in the room during the performance of the procedure involved.

(D)

Non-physician
practitioner defined

The term non-physician
practitioner means an individual who—

(i)

is
a physician assistant, a nurse practitioner, a clinical nurse specialist, a
clinical social worker, a clinical psychologist, a certified nurse midwife, or
a certified registered nurse anesthetist, and includes such other practitioners
as the Secretary may specify; and

(ii)

with respect to
the furnishing of therapeutic outpatient hospital services, meets the
requirements of paragraph
(4)(B).

.

(2)

Conforming
amendment

Section 1861(eee)(2)(B) of the Social Security Act (42
U.S.C. 1395x(eee)(2)(B)) is amended by inserting , and a non-physician
practitioner (as defined in section 1833(z)(5)(D)) may supervise the furnishing
of such items and services in the hospital after in the case of
items and services furnished under such a program in a hospital, such
availability shall be presumed.

(b)

Prohibition on
retroactive enforcement of revised interpretation

(1)

Repeal of
regulatory clarification

The restatement and clarification under
the final rule making changes to the Medicare hospital outpatient prospective
payment system and calendar year 2009 payment rates (published in the Federal
Register on November 18, 2008, 73 Fed. Reg. 68702 through 68704) with respect
to requirements for direct supervision by physicians for therapeutic hospital
outpatient services (as defined in paragraph (3)) for purposes of payment for
such services under the Medicare program shall have no force or effect in
law.

(2)

Hold
harmless

A hospital or
critical access hospital that furnishes therapeutic hospital outpatient
services during the period beginning on January 1, 2001, and ending on December
31, 2011, for which a claim for payment is made under part B of title XVIII of
the Social Security Act shall not be subject to any civil or criminal action or
penalty under Federal law for failure to meet supervision requirements under
the regulation described in paragraph (1), under program manuals, or
otherwise.

(3)

Therapeutic
hospital outpatient services defined

In this subsection, the term
therapeutic hospital outpatient services means medical and other
health services furnished by a hospital or critical access hospital that
are—

(A)

hospital services
described in subsection (s)(2)(B) of section 1861 of the Social Security Act
(42 U.S.C. 1395x);

(B)

cardiac
rehabilitation services or intensive cardiac rehabilitation services (as
defined in paragraphs (1) and (4), respectively, of subsection (eee) of such
section); or